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Jurisdictional Politics in Canton and the First EnglishTranslation of the Qing Penal Code (1810) Winner of the2nd Sir George Staunton Award

S. P. ONG

Journal of the Royal Asiatic Society of Great Britain & Ireland / Volume 20 / Issue 02 / April 2010, pp 141 - 165DOI: 10.1017/S1356186309990472, Published online: 05 March 2010

Link to this article: http://journals.cambridge.org/abstract_S1356186309990472

How to cite this article:S. P. ONG (2010). Jurisdictional Politics in Canton and the First English Translation of the QingPenal Code (1810) Winner of the 2nd Sir George Staunton Award. Journal of the Royal AsiaticSociety of Great Britain & Ireland, 20, pp 141-165 doi:10.1017/S1356186309990472

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Jurisdictional Politics in Canton and the First English

Translation of the Qing Penal Code (1810)

Winner of the 2nd Sir George Staunton Award

S. P. ONG

Abstract

This article criticises the conventional interpretation of the first English translation of the Qing penalcode by George Thomas Staunton, and proposes a different reading that stresses its role in promotinga positive image of the legal order in Canton on behalf of the East India Company. It suggests thatin viewing the translation as a product of growing confrontation between two incompatible legal andcultural systems, our historical literature has radically diminished the scope of Staunton’s comparativeenterprise and his method of translation. Not only did Staunton exploit contemporary debates on penalreform to emphasise practical arrangements which overlapped across Chinese and British jurisdictions,he more importantly sought to valorise the Company’s role in maintaining the jurisdictional statusquo in what was patently an unstable and hybrid legal environment in Canton. However, the latterprerogative promoted a flattering and partial conception of jurisdictional ambiguity in Canton. It elidedthe Company’s role in proliferating instability in Canton, and presented legal accommodation as aunilateral concession by the Qing from the severity of their own laws. This article addresses the intimateconnections between the pluralist and pragmatic aspects of Staunton’s project. It shows how, even thoughits pluralism has been forgotten, its pragmatic conceits concerning the origins of extraterritoriality haveleft a lasting impact on the historiography of Sino-Western relations.

To the question ‘What is the nature of Chinese law?’ the first English translator of a Chineselegal code replied,

It may indeed be almost invariably remarked, in respect to the institutions of civilised, andparticularly anciently civilised, nations, that although the ends of substantial justice may in generalbe really consulted, it is almost in vain to expect to find a suitable provision for the attainment ofthose ends by the shortest and simplest means. This desideratum, however its attainment may beheld out in the speculations of theorists, seems to be reserved to be accomplished by the wisdomof future ages. How far, in the formation of the laws of the Chinese, the ends of substantialjustice are even consulted, there must, also no doubt, be some variety of sentiment. There arecertainly many points upon which these laws are altogether indefensible . . . But it will scarcelyescape observation, that there are other parts of the code which, in a considerable degree, compensate theseand similar defects, are altogether of a different complexion, and are perhaps not unworthy of imitation, evenamong the fortunate and enlightened nations of the West.1

1George Thomas Staunton, Ta Tsing Leu Lee; being the fundamental laws, and a selection from the supplementarystatutes, of the Penal code of China (London, 1810), p. xxiv [hereafter Staunton, TTLL].

JRAS, Series 3, 20, 2 (2010), pp. 141–165 C© The Royal Asiatic Society 2010

doi:10.1017/S1356186309990472

142 S. P. Ong

For a twenty-first century student of Anglophone cultural representations of China, hisassessment must come as a surprise. The ‘wisdom of future ages’ has indeed furnished us withmany western theorists eager to define ‘Chinese justice’. Their verdict, however, has beenquite the reverse of our translator’s agnostic offering. For much of the nineteenth and twen-tieth centuries, the prevailing notion has been that ‘Chinese law’ was either oxymoronic –Chinese tradition having no real legal system or impartial system of law – or, at the veryleast, so fundamentally different from legal conceptions in the West as to frustrate anymeaningful comparison. Historically, the deficiencies of Chinese justice are enshrined inthe concessions of extraterritoriality for Europeans and Americans after the Opium War in1842. The extraterritorial regime was a powerful symbol of China’s semi-colonial status andexclusion from the civilised ‘Family of Nations’. In current political discourse the lack of lawin Chinese culture has enormous purchase: it is not only the refrain from critics of Chinamost commonly invoked in the cause of human rights and political reform but also some ofthe most dominant tendencies amongst intellectuals and officials within East and SoutheastAsia – which valorise the essential difference of Asian legal traditions, culture and values.This thesis of incommensurability is also consonant with a dominant tradition in Chinesehistoriography and legal studies. The various elements in this scholarship – the tendencyto see Chinese law as exclusively penal, and as premised on state control; the tendencyto play down the applicability of civil law concepts to Chinese society, and the Weberiandisavowal of the possibility of formal legal rationality in China – all these constituted animportant legacy of conventional Chinese historiography, and directly or indirectly exerteda major influence over much of non-academic discourse on Chinese society and culture.2

In the modern English translation of the Qing code by William C. Jones, for instance, wefind not only all of the commonplace mistrust of commensurability between Chinese andwestern law but also an extended emphasis on the sociological basis and implications ofsuch difference: “Our (Western) law has grown outward, as it were, from the concerns ofindividuals or ‘persons’. It fulfils large social purposes, but it does so indirectly by dealingwith the affairs of individuals, largely from their points of view . . . In China, precisely thereverse was the case. The state promulgated laws to make sure its interests were advanced. . . the interests of individuals were often protected as an indirect result”.3

These are polarities familiar to every student and observer of Chinese law and society.Accustomed as we are to this profile of an incommensurable and deficient Chinese legalculture, it would seem almost impossible for us to gain any purchase on our pioneeringtranslator’s assessment. What motivated him to examine the Chinese legal system? What werehis sources of information and his points of reference? What framework of cultural translationlegitimated the production and reception of an Oriental legal system “not unworthy ofimitation, even among the fortunate and enlightened nations of the West”?

2For critiques of this tendency see Teemu Ruskola, “Legal Orientalism”, Michigan Law Review, 101 (October2002), pp. 179–234; and William Alford, “Law, Law, What Law? Why Western scholars have not had more tosay about its law”, in Civil law in Qing and Republican China, eds. Kathryn Bernhardt and Philip Huang (Stanford,1994), pp. 45–64.

3The Great Qing Code, translated by William C. Jones with the assistance of Cheng Tianquan and Jiang Yongling(Oxford, 1994), p. 9.

Jurisdictional Politics in Canton and the Qing Penal Code (1810) 143

The source of this quotation is the first English translation of the Qing legal code, issuedin 1810 under the title Ta Tsing Leu Lee; being the fundamental laws, and a selection fromthe supplementary statutes, of the penal code of China. The code was translated by GeorgeThomas Staunton (1781–1859), then serving as a supercargo and Chinese interpreter forthe East India Company factory in Canton (Guangdong). The translator and his workhave not been the subject of much interest in Anglo-Sino history. Apart from someparenthetical remarks on the translation’s inaccuracies against modern sinological standards,the few systematic studies that we possess have placed it against the larger backdrop ofa burgeoning ‘cultural war’ between China and Britain in the early nineteenth century.An immediate product of the conflicts of jurisdiction in Canton, it purportedly helpedto crystallise an ever more uncompromising view of the incompatibility between Chineseand western juridical systems.4 Underwriting these assessments of the work is a deep-seated interpretation of the origins of extraterritoriality in Anglo-Sino history. This accountroutinely commences by positing an unbroken cycle of jurisdictional disputes involvingforeigners from the late eighteenth century to the first Anglo-Sino War in 1839. That thesedisputes were a sustained and consistent resistance by the British to Qing jurisdiction isdemonstrated by recalling landmark cases and underlining what was putatively their centraland recurring preoccupation: the refusal to submit to an opaque and draconian judicialsystem that lacked the necessary safeguards for the liberty and rights of the individual. Thefailure to take criminal intent into account, the use of torture, and the acceptance of surrogateand collective responsibility in prosecution – all were anathematised, and the view held to beuniversally shared by early western observers of Chinese law. Here, the overriding premise –of which law is only one in a multitude of examples – is the disjunction “between twounilateral, Chinese and Western, schemes of things”.5

The consequences of such an outlook for a critical and historicised view of translationhardly need spelling out.6 How it has misrepresented Staunton’s project of translatingChinese law is a subject to be broached in this article in two aspects. The first concernsStaunton’s comparative method and craft of translation. This is an area which existingscholarship has not helped us understand. Rather, it has been taken for granted that Staunton’sinterpretive framework was derived explicitly from the tradition of natural rights in westernpolitical philosophy. However, this perspective has more than a hint of Whig history to it:early nineteenth-century British discourse on penal law was not the exclusive province ofnatural law arguments; indeed, the main problem with circumscribing Staunton’s frame of

4George Keeton, The Development of Extraterritoriality in China, 2 vols. (London, 1928); Alain Peyrefitte, TheCollision of Two Civilizations: The British Expedition to China 1792–4, translated from the French by Jon Rothschild(London, 1993), pp. 491–493; Patrick Tuck, “Law and Disorder on the China Coast: The sailors of the Neptuneand an Affray at Canton, 1807”, in British Ships in China Seas: 1700 to the Present Day, eds. Richard Harding, AdrianJarvis and Alston Kennerley (Liverpool, 2004), pp. 83–97; Glenn Timmermans, “Sir George Thomas Staunton andthe Translation of the Qing Legal Code”, Chinese Cross Currents, Vol. 2, No. 1 (January-March 2005), pp. 27–58;R. Randle Edwards, “Ch’ing Legal Jurisdiction Over Foreigners”, in Essays on China’s Legal Tradition’, eds. JeromeAlan Cohen, R. Randle Edwards and Fu-mei Chang Chen (Princeton, 1980), pp. 222–269.

5John Fairbank, Trade and Diplomacy on the China Coast, 1842–54, Vol. 1 (Cambridge, Mass., 1953), p. 3.6For a trenchant critique on how theories of linguistic and conceptual incommensurability have elided the

historical and ideological commitments of translators, see Roger Hart, “Translating the Incommensurable: FromCopula to Incommensurable Worlds”, in Tokens of Exchange: The Problem of Translation in Global Circulations, ed.Lydia Liu (Durham, N.C., 1999), pp. 45–73.

144 S. P. Ong

reference in such a narrowly intellectual genealogy is that it eliminates from our view hisspecific engagements with the wider registers of discourse on penal law reform in England.Reflections on the fitness of English law, enjoining debate over the draconian and disorderlycharacter of criminal statutes, had been a feature of public intellectual life since the lateeighteenth century – but they were especially salient in the year that the Leu Lee waspublished: the parliamentary debates on penal legislation launched in 1808 had gatheredsteam, and pamphleteering campaigns of reformist and anti-reformist colours were in fullforce; Napoleon’s new criminal code issued that year serving to amplify public interest andpolemic.7 The immediate relevance of this debate to the reception of the Qing code isaptly demonstrated in one periodical’s remarks that they “notice, with great satisfaction,that unjust severity in the law, is not in China, any more than in England, a sure modeof preventing offences”.8 This context where easy equivalences could be made betweentwo otherwise disparate systems underscores the need for a more nuanced and historicallycontingent account of the legal language at Staunton’s disposal. I shall show how Stauntonharnessed the central arguments against penal reform to construct finely calibrated parallelsbetween English and Chinese law. Rather than simply reproducing the polarities of occidentalindividualism and oriental patriarchalism, he undertook an ambitious and strategic recastingof the connexions between both legal systems, emphasising the ubiquity and equitability ofpractical arrangements which overlapped across both British and Qing jurisdictions.

The second aspect addresses the ideological commitments underwriting Staunton’s positiveportrayal of Chinese law. Scholars have traditionally not had much to say about the colonialand institutional contexts of Staunton’s engagement with Chinese law. This omission isthe consequence of a state-centred perspective which has dominated the historiographyof Anglo-Sino relations. From this standpoint, the Company functioned, not as a distinctvariable in that history, nor as a political and local actor in its own right, but merely asan extension of the state. Extraterritoriality (claims to jurisdiction over British residents inCanton) is accordingly conceived as an inter-state process, within which conflicting valuesof law and political authority held by two discrete sovereign entities were clarified. For manyhistorians, the fact that the Qing had repudiated mutual sovereign relations with Britainand the Company had been placed under tight local constraints, is enough to establishthat the Qing government exerted hegemonic authority over the legal order in Canton.With this, the refusal by the British to submit to Qing law is framed not as an outcomeof local ‘jurisdictional politics’ but of incommensurate notions of legality. In other words,‘extraterritorial rights’ was not a contingent issue that the East India Company exploitedto proliferate ambiguities in the legal order in Canton−it was rather a manifestation of thesystemic differences between Chinese and Western approaches to governance and socialcontrol.

However, this pristine formulation of the origins of extraterritoriality falls apart upon acloser inspection of the realities in Canton. The absence of a truly hegemonic legal regime

7On the debates concerning penal legislation, see V. A. C. Gatrell, The Hanging Tree: Execution and theEnglish People 1770–1868 (Oxford, 1998). Contemporary interest toward alternative approaches to penal legislationis illustrated by the Monthly Review, which reviewed the Code Penal and Staunton’s translation in the same volume –Vol. 64 (1811).

8Critical Review, Vol. 21, No. 4 (December 1810), p. 348 [my emphasis].

Jurisdictional Politics in Canton and the Qing Penal Code (1810) 145

was essential to the proper functioning of British trade; indeed, the China trade had alreadyexisted for many years in defiance of Qing laws. It is no exaggeration to say that the entirebalance of Britain’s global commerce hung on the contraband trade of opium, which wasplaced beyond the control of the Company merchants for the simple reason that it wasproscribed by the Qing. It was conducted instead by private traders, who operated behindan array of protective screens: foreign diplomatic cover (purchasing naturalisation papersfrom another country, which was an early modern version of faked passports), greased localofficials, the Company’s monopoly of large-scale opium production in India, and not least,the connivance of Company factors at Canton. In this setting, it was hardly surprising thatthe theoretical principles of political and juridical authority were regularly flouted. Agentsfrom both sides had developed means of circumventing official regulations and sanctions, tothe extent that the system had become a hybrid between official transactions and a mostlyillicit private trade.

In these conditions, an ambiguous jurisdictional politics was one of the major strengthsof the Company’s strategy: enabling it to pay lip service to Chinese law while relentlesslyprobing at its seams in practice. For this period, it is my claim that Staunton’s positiveportrayal of Chinese law was designed to present a partial image of jurisdictional politics inCanton to his British audience. In this respect it shares in common with what might betermed a ‘public relations apparatus’: on one hand legitimating the Company as a sovereignrepresentative and cultural mediator, on another serving as a filter to process for publicconsumption the powerful material interests that were determinant of the colonial situation.

The so-called ‘fall of China’s image’ – from an ‘Other’ in the eighteenth century perceivedas not only an equal but as quite possibly superior, to the object of contempt on the eveof the Opium War – is a historical periodisation for which existing literature offers us littlehelp in explaining. This article is part of a larger effort to show why this has been thecase, and to provide a more precise analysis of the constitution of Anglo-Chinese relationsin the early nineteenth century. In sketching the various forces at work in the productionand reception of Staunton’s work, it is my intention to displace the traditional narrativeof early modern Anglo-Sino history, which frames its development from within the broadconstructs of diplomatic conflict or the ‘rise’ of free trade and the western bourgeoisie. Thatis to say, the historical project undertaken in this essay is concomitantly an attempt to trackand reassess the contributions of the East India Company to the historical formation of animperial episteme. As I hope to show, for a brief moment in the early nineteenth century –partly induced by the pressure of the debates around the extension of the Company’smonopoly on the India and China trade – an attempt was made to articulate an emollientand ostensibly consensual image of China and Anglo-Sino relations. An understanding ofthe conceptual life-history of empire requires us to address the ‘sovereign’ corporation’sambiguous and fragmented traces with more historical nuance and specificity.

The Ta Tsing Leu Lee and its English translator

The Ta Tsing Leu Lee (or, more commonly referred to in the modern Mandarin romanisationsystem as Da qing lu li) translates literally as ‘Statutes and Sub-statutes of the Great Qing’.Now taken to be the definitive version of the Qing code, it was compiled under the order

146 S. P. Ong

of the Qianlong emperor in the fifth year of his reign in 1740. Despite the periodic issue ofnew editions, the heart of the code – the four hundred and thirty-six key statutes – remainedintact until the sweeping reforms ushered in during the death throes of the dynasty in1905. Yet it is important to understand that, though the Ta Tsing Leu Lee purported toencompass the entire scope of legal procedure, in reality it represented only a very small partof the Qing legal edifice, which contained a vast body of administrative and legal literaturethat underwent frequent revision and supplementation.9 Beyond state-sponsored literaturethere were the myriad legal commentaries produced by a mixed community of governmentofficials, local magistrates and legal scholars, many of which were written in an unofficial,private and anonymous capacity that nevertheless saw wide circulation10 ; there were alsothe judicial casebooks that formed a repertory of archived judgements by skilful officials,compiled as models for their peers and students; on top of all this was a bewildering arrayof local magistrate’s handbooks and provincial law compilations that varied from county tocounty, and which – as the recent work of some scholars have shown – reflected the workingsof local juridical practices far more accurately than did statute law.11 In the immense mosaicof Qing legal thought, the Ta Tsing Leu Lee could only offer an Olympian and partial viewof the judicial system.

Staunton’s original sources were the 1800 and 1805 editions of the code, respectivelypublished in the fourth and tenth years of the reign of the emperor Jiaqing.12 In Staunton’stranslation our view of the Qing legal world becomes even narrower. We get only thefour hundred and thirty-six statutes, the sub-statutes which actually made up the majorityof the original were completely excised. However, it is clear from a comparison with theoriginal that Staunton added an important amount of non-original, para-textual materialthat appeared in the form of appendices and footnotes serving as a running commentaryto the statutes – indeed, the scope of his preface clearly suggests itself as a stand-alonedissertation on Qing law. His key departures from the original text centred on the legalrights of British subjects in China. According to the Company’s records, the root problemthat brought it into collision with the local government was jurisdictional disputes involvingsailors, arising particularly from drunken rampages during shore leave, or involving H.M.S.ships that did not answer to any party. It was just such a case in 1800, the H.M.S Providence

9For reasons of brevity I can only point to the following works for a more accurate picture of Qing law: DerkBodde and Clarence Morris (eds.), Law in Imperial China, Exemplified by 190 Ch’ing Dynasty Cases, Translated fromthe Hsing-an hui-lan with Historical, Social, and Juridical Commentaries (Cambridge, Mass., 1967), see especially PartOne, Chapters II and V; Melissa Macauley, Social Power and Legal Culture: Litigation Masters in Late Imperial China(Stanford, 1998); and Chang Wejen, “Legal Education in Ch’ing China”, in Education and Society in Late ImperialChina, 1600–1900, eds. Benjamin Elman and Alexander Woodside (Berkeley, 1994), pp. 292–321.

10A famous example is Shen Zhiqi’s private commentary in his compilation of the Da Qing Lu Li Zhi Zhu(Great Qing Code with collected commentaries) published in 1715.

11See Philip Huang, Code, Custom, and Legal Practice in China: The Qing and the Republic Compared (Stanford,2001); Mark Allee, Law and Local Society in Late Imperial China: Northern Taiwan in the Nineteenth Century (Stanford,1994); Pierre-Etienne Will, “The 1744 Annual Audits of Magistrate Activity and their Fate”, Late Imperial China,Vol. 1, No. 2 (December 1997), pp. 1–50.

12Staunton’s original copies are very possibly the ones currently held by the Royal Asiatic Society (shelfmarkedR.A.S. 118/Amherst 11 G.1–2, and R.A.S. 119). Staunton included these two copies as part of a collection of 3,000

Chinese volumes which he donated as a co-founder to the society in 1823. However, my inquiries have revealedno marks of ownership or annotation in the texts for me to be absolutely certain that they were Staunton’s actualsources. Still, the fact that the publication dates of these editions correspond to the ones which Staunton claimedto have used, and that they are the only copies on record as his personal property, is strong grounds for conjecture.

Jurisdictional Politics in Canton and the Qing Penal Code (1810) 147

affair, which led the Company to request – and Staunton to procure – a copy of the Chinesecode of laws.13 Staunton’s insertions included commentaries on accidental homicide, andon offences committed by foreigners where he elaborated on the legal precedents andpunishments imposed on foreigners involved in the murder and manslaughter of locals. Thecentre-piece of his appendix was the ‘Note of the Translator; containing some Remarksupon the Application of the Laws to the Case of British Subjects trading to and residing atCanton’. Diplomacy was evidently a central concern.

Staunton is now chiefly remembered as the child prodigy who learned to write and speakMandarin from two Chinese Catholic missionaries while accompanying his father – SirGeorge Leonard Staunton, who served as Lord Macartney’s deputy – on the first Britishembassy to China from 1792 to 1794. But it should be noted that more than perhaps anyother individual in the interim between Macartney’s mission and the Opium War in 1838,he was a constant presence at the heart of events between both countries: from his positionas supercargo, chief interpreter, and finally head of the British establishment in Canton(1804–1817); as the primary adviser and a key participant in Amherst’s embassy to Chinain 1816; as a member of parliament who lobbied and published actively on colonial issuesfrom 1818 onwards to the 1840s; and not least, as the singular pro-Company voice in theEast India committee of 1830 that voted to dissolve the Company’s monopoly on the Chinatrade.

Staunton was more than a policy specialist. In being both practitioner and patron ofSinology, he was an anomaly amongst his contemporaries in China, whose parochial outlookwas well known. Lacking the political opportunities available in India, confined to a smallsuburb in Canton, and with nothing more at stake than the supervision of a long-establishedtea trade, China was seen as a sinecure for scions of the “House of Leaden Hall”, producinga “certain fortune without the employment of capital, or risque, or talent, or exertion”.14

But Staunton’s distinct ability coupled with his personal ties to figures such Macartney,John Barrow and Henry Colebrooke gave him entry into the ruling circles of metropolitanintellectual life. He was elected early in his career to the Literary Society and the RoyalSociety; and in 1823, Colebrooke, the leading Indian scholar of the day, invited him toassist in the formation of the Royal Asiatic Society, to which Staunton donated a foundingcollection of three thousand Chinese volumes and about two hundred European works onChina.15 The instrumental nexus of influence, however, lay in Staunton’s close friendshipwith John Barrow – who served as controller of household on Macartney’s embassy, butrose swiftly to become second secretary of the Admiralty, protege to Joseph Banks at theRoyal Society, the principal reviewer of travel literature for one of the nation’s two dominantliterary-political periodicals, and a presiding spirit of British overseas adventurism.16 Togetherthey aimed at creating a new generation of scholar-administrators in the mould of Staunton’s

13For details of the Providence affair, refer to British Library, Oriental and India Office Collections, Court’sletters to the Select Committee of Supercargoes at Canton in China (1800–3), R/10/37, May 6, 1801, paras. 8–11.See also Staunton’s detailed account of the matter and his purchase of the 24 volumes of the Qing code in ChinaThrough Western Eyes: Manuscript Records of Traders, Travellers, Missionaries & Diplomats, 1792–1942 (Marlborough, n.d.),part 2, reel 27, ‘Letter to George Leonard Staunton, 27 March 1800, Canton’.

14Quarterly Review [hereafter QR], Vol. 2, No. 4 (November 1809), p. 270.15Staunton, Memoirs (London, 1856), p. 173.16See Fergus Fleming, Barrow’s Boys (London, 1998).

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counterparts in the Indian service, who were to possess not only administrative competenciesbut also linguistic and cultural expertise.17 The impact of this emphasis can be seen in thecareer of Robert Morrison, the first Protestant missionary in China. Despite its customaryproscription against missionaries, the Company – upon the recommendation of JosephBanks and Staunton – quickly conferred on Morrison the post of chief interpreter andgave him a generous allowance to instruct junior servants in the language, subsequentlycommissioning him to compile the first English-Chinese dictionary.18 This network ofcultural and power brokers created an institutional starting place for a more coherent – if notprogrammatic – thrust in the direction of China policy. For the first time in Britain thereemerged a mutually communicating stratum of intelligentsia committed to reforming Anglo-Sino relations, whose web of influence stretched delicately across traditionally opposedinstitutions, encompassing colony and metropole.

The British Reception of the Ta Tsing Leu Lee

The Leu Lee was advertised with great anticipation and reviewed extensively in the leadingeditorials and literary journals of the day. Being the “first book . . . translated immediatelyfrom the Chinese character into the English language”, it laid the groundwork for a moremature phase in Sino-Anglo relations, paving the way for “more moderate and rationalopinions . . . of this singular people”.19 For most reviewers, the importance of Staunton’stranslation transcended the narrowly legal or sinological; its epoch-marking significance wasascribed to its facility as a knowledge project. Scrutinising the work for the Edinburgh Review,James Mill underscores this point, asserting that “there certainly is no one document fromwhich we may form a judgement of the character and condition of any nation, with somuch safety, as from the body of their laws”. John Barrow, in a more messianic mood forthe Quarterly Review, compares it to earlier translations of the Hindu and Persian codes andinserts Staunton into the company of those would-be Tribonians such as Nathaniel Halhed,Charles Wilkins, and William Jones – men who “were bold enough to venture into the darkand intricate windings of the oriental labyrinth”; who, “by their united efforts, the dumboracle has been made to speak, and all that was left of religion, law and science among thepeople of this ancient country, revealed to the wondering nations of Europe”.20 Ostensibly,this presaged ‘the end of the China fad’. That the work successfully captured the changingtemper of western attitudes seems to have been a matter of fact. Like the modern museum,or the cartographical and census report – which Bernard Cohn has called the ‘museological’,‘surveillance’, and ‘enumerative’ modalities of colonial knowledge – the discovery of the legalcode appears to have been borne of the same empiricist disenchantment, and bound by thesame instrumental aspects of documentation, legitimation, classification, and abstraction.21

These were, as Mill puts it, “actual specimens of their intellect and character; and may

17QR, Vol. 3, No. 6 (May 1810), pp. 274–277; QR, Vol. 2, No. 4 (November 1809), pp. 270–271; also extolledas a desideratum by James Mill in Edinburgh Review [hereafter ER], Vol. 14, No. 28 (July 1809), pp. 412–413.

18Letter from Banks to Staunton introducing Robert Morrison, Royal Society Misc. MSS. 6.8; Staunton,Memoirs, pp. 34–37.

19QR, Vol. 3, No. 6 (May 1810), p. 273; ER, Vol. 14, No. 28 (August 1810), pp. 476–477.20Ibid., p. 477; QR, Vol. 3, No. 6 (May 1810), pp. 273–274.21Bernard Cohn, Colonialism and its Forms of Knowledge: the British in India (Princeton, 1996), Chapter 1.

Jurisdictional Politics in Canton and the Qing Penal Code (1810) 149

lead the reflecting observer, to whom they are presented, in any corner of the world, to avariety of important conclusions that did not occur to the individual by whom they werecollected”.22

In any case, the inclination of the reflecting observer to “more moderate and rationalopinions” was widely understood as a metaphor for the main objective of the new Chineseknowledge project: to renounce China’s cultural legitimacy as the result of an “exaggeratedaccount of . . . a set of philosophers”, who “not only exalted those remote Asiatics aboveall European competition, but had transformed them into a sort of biped Houyhnms – thecreatures of pure reason and enlightened beneficence”.23 This objective was clearly visiblein Staunton’s preface where he qualifies the sinological achievements of the Jesuits, showinghow their sinophilism was based not on scientific inquiry but on a religious and ideologicalbias. “Science and literature”, as he puts it, “were objects only of a secondary consideration,infinitely inferior in their estimation to that sacred cause in which they were united” –“it was also inevitable, that persons thus situated should be, generally speaking, under theinfluence of a strong pre-disposition in favour of a people, for the sake of whose conversionthey had renounced their country, and devoted their lives”. Staunton’s tacit portrayal of theJesuits as propagandists was subsequently delivered quite simply by many of his reviewersas a final judgement on Chinese civilisation itself; his pronouncement that “the superiorityover other nations, in point of knowledge and virtue, which the Chinese have long beenaccustomed to assume to themselves, and which some of their European missionaries havetoo readily granted them, was in great measure fallacious” was endlessly rehearsed.24 Thusin a typical case, in his popular history of early modern Sino-Anglo relations, the Frenchpolitician Alain Peyrefitte can claim that “the searing revision of the British view of Chinaculminated with the work of Macartney’s page (Staunton), whose merciless judgement wasbased on his unparalleled judgement of the Chinese . . . a kind of cultural war had beendeclared”.25

The major problem for someone who does study the the Ta Tsing Leu Lee in its entiretyalong with the reviews is that there was anything but agreement between Staunton and hisreviewers about the state of Chinese civilisation – much less a collective stance of ‘culturalwar’. Here is, for example, Staunton strenuously modulating his critique of the Jesuits –

By the foregoing observations, it is by no means intended to detract from the real merits of thelearned and pious writers of this class, either by denying, that they have afforded to the Europeanworld a vast collection of useful and interesting information, or by asserting, that they have . . .been guilty of wilful deception or misinterpretation. It is merely wished to point out some ofthe causes which render it unsafe to rely implicitly on their authority, to state the particular biasunder which they wrote, and to notice some of the effects of which that bias was necessarilyproductive.

– then going to great lengths to suggest that the anti-Chinese polemics issuing from membersof Macartney’s mission (such as those of Barrow) were just as misinformed,

22ER, Vol. 14, No. 28 (August 1810), pp. 477–478.23Ibid., p. 476.24TTLL, pp. v–vi; viii–ix.25Peyrefitte, The Collision of Two Civilizations, pp. 491–492.

150 S. P. Ong

If they [Macartney’s retinue] had possessed equal opportunities with the missionaries, whopreceded them, of exerting their judgement upon the Chinese character, though they certainlywould not have coincided in all their sentiments and opinions, they might, perhaps, have foundsomething to compensate the evils they had justly reprobated and lamented, and they mighteven have at last determined, that a considerable proportion of the opinions most generallyentertained by Chinese and Europeans of each other was to be imputed either to prejudice, or tomisinformation; and that, upon the whole, it was not allowable to arrogate, on either side, anyviolent degree of moral or physical superiority.

In these and the passage quoted at the beginning of the chapter we can see Staunton’sinsistence on being circumspect about any absolute judgement based on cultural differences.He maintains a few pages later that “[T]he foregoing conjectures respecting the degree ofestimation in which the Chinese government and people will be held by the other civilisednations of the world . . . can neither be verified, under present circumstances, by adequate personalenquiry”.26

Given his persistent equivocation, what accounts for the unanimity of disenchantmentand the seamless consolidation of opinion that was supposedly conceived upon the publicreception of the Ta Tsing Leu Lee? The immediate evidence suggests that the reviewerssimply refused to engage with Staunton’s positive representations of China; these wereconstrued as a regrettable instance of self-contradiction or a minor complication that couldbe perfunctorily dismissed. The reviewers were clearly in a difficult spot: they were in aposition of substantial ignorance about the material being discussed, and could not cavil atStaunton’s learning while anointing him the solitary expert on the country. They implicitlyreverted to the tactic of suppressing as much as they could of the positive representations ofthe administration and conception of Chinese law within the textual apparatus (such as inhis footnotes and appendices), and focussed on reviling several self-evidently incriminatoryaspects of the law while reiterating his anti-Jesuit critique as the rallying point of a putativeconsensus.

Such selective analysis of the work enables the Critical Review, for instance, to declare thatthough “it does not become us, on a subject as to which we are practically ignorant, to argueagainst a writer of Sir George Staunton’s experience, from theoretical principles only” –“that there does not appear to us any thing is brought forward in the present publicationat all tending to invalidate the lowest estimate which has been formed of national characterand acquirements”.27 In a similar vein, the Edinburgh Review defers judgement by claimingthat “though we approve very much of the spirit of these observations, we cannot justpersuade ourselves to acquiesce in the equation with which they conclude . . . the intellectualcondition of the Chinese must be a subject of more curious investigation than the best of ourrecent accounts would lead us to believe”.28 For the Quarterly Review, it was merely enoughto reject Staunton’s “ingenious attempt to defend the Chinese against those writers whohave not held up their moral character as a model for imitation” as being “more theoreticalthan substantial”.29 For the Monthly Review, the ideological bugbear of absolutism afforded

26TTLL, pp. vii; ix–x; xi [my emphasis].27Critical Review [hereafter CR], Vol. 21, No. 4 (December 1810), p. 341.28ER, Vol. 14, No. 28 (August 1810), p. 479.29QR, Vol. 3, No. 6, p. 295.

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“a convenient opportunity of protesting against Sir George Staunton’s constant propensityto palliate the faults of the Chinese in general, and particularly his defence of their legalsystem, on score of its being constituted on the basis of parental authority”.30 There were, ofcourse, cracks in the consensus. From an unapologetically Tory standpoint, the British Criticsums up its review by praising the “admirable sentiments of filial piety and royal duty” inthe Leu Lee, and wishing that George III would enjoy a longevity equal to Qianlong’s!31

Translating the Qing Code: Natural Law, the Ancient Constitution,and Penal Reform

Among the provocations offered by Staunton’s valorisation of Chinese justice, the mostcontentious was his endorsement of paternalism in the language of natural law. He identifiedpatriarchal government’s prime advantage as being founded upon “the immutable and ever-operating laws of Nature”. Such a polity “must thereby acquire a degree of firmness anddurability to which governments, founded on the fortuitous superiority of individuals . . .and continued only through the hereditary influence of particular families, can never beexpected to attain”.32 Because of China’s unique geographical and geopolitical circumstance,the source and origin of natural law and moral knowledge had been hermetically preserved:“[I]t may easily be traced even in the earliest of records; it is inculcated with the greatest forcein the writings of the first of their philosophers and legislators; it has survived each successivedynasty, and all the various changes and revolutions which the state has undergone; and itcontinues to his day powerfully enforced, both by positive laws and by public opinion”.33

Of course, Staunton was in one sense simply rehearsing the well-worn Voltairean clicheof the ‘immobile’ Chinese civilisation, “le plus ancien du monde, et le mieux police sans doute,puisqu’il a ete le plus durable”.34 For his reviewers, however, Staunton appeared to have removedat a stroke the fraught discussion of subjective natural rights and ‘external consideration’which had vexed European thinkers for several centuries. In an epoch whose new outlook“centred on the belief that all normal individuals are equally able to live together in amorality of self-governance”, and in which there was a conceptual separation between law(imperfect duties) and morality (perfect duties), Staunton’s characterisation of Chinese justiceas uncorrupted paternalism easily lost its target. As Montesquieu expressed with paradigmaticforce, “Mores and manners are usages that laws have not established, or that they have not beenable, or have not wanted, to establish. The difference between laws and mores is that, whilelaws regulate the actions of the citizen, mores regulate the actions of the man”. Montesquieuunsurprisingly proceeded to criticise “the legislators of China” for confusing “religion, laws,mores and manners; all was morality, all was virtue”.35 This dictum underscores the ease inwhich any invocation of paternalism – and of natural law language in general – could be

30Monthly Review [hereafter MR], Vol. 64 (February 1811), p. 122.31British Critic, Vol. XXXVI (September 1810), p. 224.32TTLL, p. xix.33Ibid.34Voltaire, Remarques, pour servir de supplement a l’essay sur l’histoire generale, et sur les moeurs et l’esprit des Nations,

depuis Charlemagne jusqua nos jours (Geneva, 1763), p. 7; quoted by James Mill in his review of Louis-Chretien deGuignes, Voyage a Pekin, in ER, Vol. 14, No. 28 (July 1809), p. 415.

35The Spirit of the Laws, translated and edited by Anne M. Cohler, Basia C. Miller and Harold S. Stone(Cambridge, 1989), Part 3, Book 19, Chapters 16 and 17 [my emphasis].

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pushed into a conceptual cul-de-sac preoccupied with the dichotomies of self-governanceand obedience.

However, the language of natural law offers at best a partial entry point into Staunton’sconception of Chinese justice. For when one reads Staunton’s introduction more carefullyit is obvious that he did not think that Chinese law was entirely made up by a permanentand unchanged set of rules: a timeless constitution did not mean a changeless constitution.Staunton’s reviewers, in taking his representation of Chinese law to be the defined toutcourt by the paternal principle, were being purposefully misleading about the range of hisconceptual vocabulary. What they clearly refused to acknowledge was his attempt to harnessthe rhetoric of common law and ancient constitutionalism. Of course, Staunton attemptedto do so whilst retaining the mainframe of paternalism, which led him to pre-empt thepremise of civil liberty so taken for granted in the Anglo-Scottish context of the ‘ancientconstitution’. The eventual outcome was that it gave his reviewers ample room to evade themore uncomfortable elements of his introduction as they settled on the uniform equationsprovided within the scope of natural law theory.

A cogent example of his attempt to draw affinities in terms of a historical analysisof customary law was his treatment of Chinese legal development as an accretive andevolutionary process. This was firmly underlined when he described the Qing code –

as even in our European codes, although the structure is comparatively of a recent date, it is oftenrendered intricate and inconvenient from an adherence to a plan, which owing to its antiquity, isin some places altogether inapplicable to the state of things as they at present exist; and yet, outof respect to its origins, is only cautiously, and perhaps awkwardly, modified, instead of beingwholly set aside or fundamentally altered, as often as new circumstances and events had renderedit expedient.36

Legal concepts and practices were picked up in slow accretions; or, in a bruited account ofthe Gothic constitution of England –

like that of most countries of Europe, hath grown out of occasion and emergency; from thefluctuating policy of different ages; from the contentions, successes, interests, and opportunitiesof different orders and parties of men in the community. It resembles one of those old mansions,which, instead of being built all at once, after a regular plan, and according to the rules ofarchitecture at present established, has been reared in different ages of the art, has been alteredfrom time to time, and has been continually receiving additions and repairs suited to the taste,fortune, or conveniency, of its successive proprietors.37

Through a concatenation of hoary cliches, law is inscribed as a kind of organ by whichthe nation as a whole evolved, and from which it sustained certain practices over theages; these cliches formed the basis of Staunton’s legal comparatism. He went on todevelop this expansive notion of customary practice by locating the factors of the durability ofChinese law, not in institutional acts of legislation or the clockwork authority of a centralisedbureaucracy, but in its roots in the past and in the developing usage of a community.

36TTLL, p. xxiv.37William Paley, The Principles of Moral and Political Philosophy, foreword by D. L. Le Mahieu (Indianapolis,

2002), p. 328.

Jurisdictional Politics in Canton and the Qing Penal Code (1810) 153

In choosing to articulate Chinese justice in these terms, Staunton had to address severalpopular tendencies in European discourse on China. The first of these was the insistentportrayal of Chinese law as the handiwork of mythic legislators or an extensive design oforiginal genius. Staunton attenuated the absolutist origins of Chinese law by characterisingit as being composed of organic, primordial practices which had pre-existed great legislators,subsisted in spite of political change and legislative corrections, and had acquired its forceand binding power from long usage. This can be seen if we consider his remarks on theprocess of legislative reform which followed on the wake of dynastic upheaval:

In China, the succession of a new line, or dynasty of princes, has been, as it must be in mostregular and professedly absolute monarchies, invariably attended, not only an entire dissolutionof the government, but nominally, at least, with an abrogation of the constitution established bythe preceding family; though in most cases the necessity must already have been apparent of afterwardsrebuilding the fabric of similar materials, and upon similar principles.38

This makes it clear that the antiquity of Chinese laws was not the outcome of arbitrarydespotic or legislative fiat. It points instead to a body of legal practices which had surviveddynastic upheaval, and which incumbent regimes – such as the Tartars (the Qing) – werecompelled to incorporate into their rulerships.

The force of custom was further emphasised by Staunton’s explicit rejection of the‘great legislator’ thesis. This was an important target as it had been a ubiquitous themein eighteenth-century sinological discourse, which reified Confucius, the philosopher-sage, as the patriarch and primum mobile of China’s civil religion. Not only was Confuciusconspicuously absent in his discussion, Staunton set out to demolish entirely the putativecontributions of grand system-builders. He argued that Chinese law did not have a precisehistorical identity, and that it was impossible to denominate progenitors and prototypes.The archetypal legislators of Chinese history, Li Kui (whose Code of Laws of 400 bc wastraditionally held to be the prototypical code) and Qin Shi Huang (who persecuted theConfucian literati and attempted to create Legalism on a blank slate), were subjected to athorough going-over. Although “the first regular code of penal laws is . . . attributed to aperson named LEE-QUEE”, he states, “it is evident, from the slight mention that is madeof this personage, that so far from having been a legislator, he was not even a compiler of anyconsiderable celebrity”. Moreover, the legislative reforms “of that celebrated emperor of therace of Tsin (Qin)” – “who is said to have been so ambitious of the reputation of havingbeen the actual founder of the monarchy, as to have sought it by a vain and absurd attempt atthe destruction of all the books, records, and other existing memorial, of preceding ages” –amounted merely to “a new compilation”. In their place Staunton reasserted the premiseof an autochthonous social reality: “There can in fact be little doubt, that the principalcharacteristics, not only of the code published by LEE-QUEE, but also of that in force atthis day, originated at periods far more remote than that under consideration”.39

It goes without saying that this bald depiction of the Chinese legal tradition as anautonomous, evolutionary culture sat uneasily with standard views on both China and

38TTLL, pp. xxiv–xxv, xvii, xvii [my emphasis].39Ibid., pp. xxii–xxiii, xxiii [my emphasis].

154 S. P. Ong

common law itself. In particular, it clashed with the overriding function that commonlaw ideology served in Anglo-Scottish political discourse. As the conventional apologia forEngland’s ‘mixed constitution’ in the later eighteenth century, common law was synonymouswith the celebration of natural and civil liberty. The English ‘ancient constitution’ was looselyassociated with the autonomy of common law courts against the sovereign’s prerogative, andwith a strand of aboriginal Saxon law boasting a distinguished pedigree going back to pre-Norman, pre-feudalistic times, its legitimacy was universally recognised as a bulwark ofimmutable, custom-bound civil liberties.40

But there are indications that Staunton’s borrowings contained finely calibrated overturesto the prevailing domestic registers of legal and political debate. When Staunton assimilatedthe principal features of common law into a conceptual alliance with Chinese law, he waswriting positively about a principle of rule to which customary law itself was traditionallyopposed: paternalism. Yet it is essential to realise that in this he was a man of his time.From the advent of the French Revolution, the ideological designation of common lawhad been one of broad conservatism, especially that against Jacobin subversion, with the‘ancient constitution’ being assimilated to the imperative of protecting existing customs,institutions, laws, morality and religion from a Catholic, republican, regicidal enemy. Forloyalist thinkers, the Whig historiography of the ancient constitution was a fortuitous ally,whereby the idea of historical precedent could be subsumed under a wider bien-pensantmilieu of mild social conservatism, which defended the British constitution’s “powerfulprepossession towards antiquity”.41 Global perspectives were certainly not lost on the partiesinvolved: the Oriental phantasm lurking within pro-establishment arguments was sufficientlypowerful for the ghost of Charles James Fox to warn in 1809 that “When any scheme ofimprovement is offered, hundreds will tell you innovations are dangerous . . . Should thismaxim prevail in the extent to which some are desirous to stretch it, our laws would becomelike those of some Eastern nations we read of, immutable”.42 In short, the publication ofthe Ta Tsing Leu Lee was historically situated at a point where ancient constitutionalism andthe popular conception of Oriental laws were so politicised that together they could not butbe identified as a distinctly conservative cast against legal reform and natural rights.

Indeed, there was a second, and even more important, instance of how conservativelegal discourse enabled Staunton to counter or justify some of the excesses traditionallyassociated with Chinese law, most prominently, its alleged harshness and all-encompassingmultiplicity. Staunton systematically defended the putative severity of Chinese justice usingthe very arguments which had been famously employed to validate England’s ‘Bloody Code’of criminal statutes and Parliament’s legislative omnipotence. The crux of his borrowingsrevolved around the two propositions which had been advanced as the central virtues of thelegal status quo: the doctrine of maximum deterrence, and the nostrum of judicial discretionthat purported to exercise a palliative effect of “severity in denunciation and lenity in

40See David Lieberman’s magisterial account of the eighteenth-century matrix of legal discourse in The Provinceof Legislation Determined (Cambridge, 1989).

41Edmund Burke, Reflections on the Revolution in France (Harmondsworth, 1969), p. 118. See Janice Lee’silluminating analysis in “Political antiquarianism unmasked: the conservative attack on the myth of the ancientconstitution”, Historical Research, Vol. 55 (November 1982), pp. 166–179.

42Samuel Parr, Characters of the late Charles James Fox selected, and in part written, by Philopatris Varvicensis, Vol. 2

(London, 1809), pp. 331–332.

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execution”. This comes through very clearly in his attempt to establish the differencebetween the harshness of Chinese laws in theory and their flexibility in actual practice:

Thus, also, although every page of the following translation may seem at first to bear testimonyto the universality of corporal punishments in China, a more careful inspection will lead to adiscovery of so many grounds of mitigation, so many exceptions in favour of particular classes,and in consideration of particular circumstances, that the penal system is found, in fact, almost entirelyto abandon that part of its outward and apparent character . . . Another object which seems to havebeen very generally consulted, is that of as much as possible combining, in the construction andadaptation of the scale of crime and punishments throughout the Code, the opposite advantages ofseverity in denunciation and lenity in execution. The excessive severity of the punishments actuallyinflicted in cases of treason, rebellion, breach of duty to parents and husbands, and in someothers, is scarcely any exception to this rule; as, even in such instances, the execution of the lawis lenient in comparison to its literal and prima facie interpretation.43

Chinese laws were terrifying in form but mild in practice; or, as William Paley put it in hishallowed defence of England’s ‘Bloody Code’,

The charge of cruelty is answered by observing, that these laws were never meant to be carriedinto indiscriminate execution; that the legislature, when it establishes its last and highest sanctions,trusts to the benignity of the crown to relax their severity, as often as circumstances appear topalliate the offence, or even as often as those circumstances of aggravation are wanting whichrendered this rigorous interposition necessary. Upon this plan, it is enough to vindicate the lenityof the laws.44

Staunton certainly did not miss any opportunity to press the buttons of the penal reformdebate. Two of the key changes advocated by reformers such as Samuel Romilly around1810, was the repeal of the vast number of capital statutes imposed on petty larceny, andthe minimisation of judicial discretion by restricting its application in capital cases. It comesas no surprise then that Staunton’s translation of the entire section covering how the Qingprosecuted larceny and crime against private property is shot through with the mediatingpresence of magisterial discretion and of the flexible and restrained interpretation of statutes.For example, he claims in his footnote to the section on ‘Robbing in open Day’ that “themagistrates are not intended to be bound by this precise interpretation, but allowed toexercise a discretionary power, in adopting the more or less severe law, according as thecircumstances of each particular case are, upon a general view, more or less atrocious”.45

He is also careful to underline the limited application of the capital statute for ‘Stealingin general,’ stating that “[A]lthough that part of the law in this place which states, that atheft shall in certain cases (of property above a certain value) be punished with death, doesnot appear to have been expressly repealed, there is every reason to believe that it is neverenforced”.46 For these commentaries, we are entirely indebted to Staunton: it is clear thatthese considered effusions on the importance of judicial discretion were not originally partof the Qing statutes.

43TTLL, pp. xxvii–xxviii [my emphasis].44Paley, The Principles of Moral and Political Philosophy, pp. 378–379.45TTLL, p. 283.46Ibid., p. 285.

156 S. P. Ong

Staunton further developed on this common feature of judicial discretion by alludingto government censors and magisterial tribunals in China as having a similar prophylacticrestraint on public power. His first port of call was the Qing imperial bureaucracy, wherehe emphasised the constitutional powers of the mandarinate, especially its customary role inreviewing and monitoring the actions of the emperor himself:

The board or tribunal of the censorate has the power of inspecting and animadverting upon theproceedings of all the other public boards and tribunals in the empire, and even on the acts ofthe sovereign himself, whenever they are to be conceived to be censurable, but it may easily beimagined that in a government professedly absolute, the power ascribed to the censors in thelatter case, must be little more than a fiction of state, instead of operating as a real and effectiveinfluence and control.

It must however be admitted that, from other circumstances peculiar to the constitution andadministration of the Chinese government, some of which it is hoped this work may be found toelucidate, there are probably few regular and nominally absolute monarchies, in which both thepersonal conduct and public measures of the sovereign are necessarily so much under the unitedinfluence of laws, customs and public opinion.47

So, despite the fact that there was no theoretical separation of powers and no separatelegal profession in the Qing system, Staunton could still advance a set of correspondencesin assigning an elevated constitutional significance to the executive organs of both imperialregimes. His insistence on portraying the judicial office as constitutional arbiter and safeguardis nowhere more resonant than in his observation that “[A]s the investigation of all capitalcases must pass through every step, from the tribunal of the lowest magistrate, to the throneof the Emperor; and as there is, generally speaking, a right of appeal through the samechannel in all cases . . . civil or criminal, partiality and injustice could . . . scarcely everescape detection and punishment”.48

The crucial point here is that in pointing out the norms shared by Chinese and British lawsStaunton exploited the distinction between the conception and the administration of justice. Hispurview was clearly grounded on quite flexible frames of reference and pragmatic methods oftranslation, which involved not only the construction of analogies on a conceptual level, butalso creating an account of the similarities between the actual workings of the two systems.That comparative latitude was founded on a chain of transferences that went beyond thejuridical to determine the ethical compatibility of Qing and British governance. It wasthis agenda that ultimately gave Staunton carte blanche to mobilise the vast resources of theBritish conservative resistance against penal reform. For Staunton, Chinese justice provideda comparable model of laws and legal institutions. He discerned in Qing laws a pattern ofbenign paternalism, historical conservatism, and safeguards against arbitrariness similar to theEnglish system to which Paley and Blackstone had given significant expression. It may seemforced to resurrect Staunton’s vision of Qing laws as conservative legal ideology writ large,but it is only against the backdrop of the systematic alliance between common law and the

47Ibid., p. 182.48Ibid., p. 60.

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strictures against penal reform that the larger set of elements and prerogatives of Staunton’scomparative framework can be reconciled.

By recalling the paradigm of the British constitution and reconnecting it to the Qingcode, Staunton not only drew an analogy between separate legal traditions, but he alsoemphasised the ubiquity and equitability of practical arrangements that overlapped acrossboth British and Qing jurisdictions. In this view, Staunton seems also to have emphasised avery particular desire to preserve existing legal arrangements with the Qing: the conservativearguments defending the domestic legal status quo also bore directly on the status quoof jurisdictional arrangements in Canton. If one could indeed describe Staunton’s legalvocabulary as ‘conservative’, then its conservatism lies, I would suggest, not so much in itscongruence with domestic legal discourse (which was pretty much hegemonic anyway), butrather in its valorisation of the existing jurisdictional fluidity in what was patently an unstableand hybrid legal environment, where the British sought to present themselves not only astraders but also as sovereign entities. Thus, with the laudatory synopsis that “this Code ofLaws is generally spoken of by the natives with pride and admiration; all they seem in generalto desire is its just and impartial execution, independent of caprice, and uninfluenced bycorruption”49 – a very particular image of the politics of extraterritoriality was being presentedto the Ta Tsing Leu Lee’s British metropolitan audience. The next section of my essay willnow consider some of the issues and claims underlying Staunton’s blueprint of juridicalcommensurability in the context of its indigenous habitat in Canton.

Jurisdictional Politics and the Translation of Cultural Difference

The Neptune Affair (1807)

On 24 February 1807, a riot took place in the foreign quarter outside the city walls ofCanton. Locals had swarmed the streets and gathered in the square; the British factory andtheir ships in the adjacent docking areas were besieged by an angry mob that had set fireto a Customs station, and pelted the western buildings with stones and bricks. The Britishsailors who were on shore leave from the Neptune, an East Indiaman, took it upon themselvesto rush the crowd with cudgels. Brawls ensued throughout the day. What was the result?A Chinese person died three days later of a wound allegedly sustained in the affray. Thefactual origins of the case are murky. Historians generally blame the Chinese who had on theprevious day robbed, stripped and thrown into the river a number of drunken sailors fromanother East Indiaman; therefore this was street justice, and the British sailors had merelyresponded under severe provocation. But correspondence on the affair between the directorsat Leadenhall and their associates at Canton tell us another story: it turned out from the courtof inquiry that the original offence was given by one of the Neptune’s sailors, who had robbeda local merchant and fled with the help of his comrades.50 To these historians the outcomeof the case was farcical, another damning indictment of the Qing legal system. They areparticularly scandalised by the means with which legal closure was reached. Lacking prima

49Ibid., p. xxviii.50‘Answer to the General Letter from Canton dated the 29th April 1807’, 26 February 1808. British Library,

Oriental and India Office Collections, Court’s Letters to the Select Committee (1807–1808), R/10/39, para. 40.

158 S. P. Ong

facie evidence, local officials cooked up a bizarre story that completely erased its problematicties to the riot, and transformed the affair into an isolated incident of accidental manslaughter(the British sailor dropped his stick while using it to open his room window on the upperstorey, the stick struck the Chinese person passing below and killed him). Eventually one ofthe sailors was chosen as a token culprit, and under Qing law got away with a nominal fine.The real loser in this case was the Neptune’s Chinese security merchant: as he was legallyaccountable for the conduct of the British crew, he had to bankroll the sordid charade at apersonal cost of fifty thousand pounds sterling.

The Neptune affair featured prominently in Staunton’s translation of the Ta Tsing Leu Lee.It was the centre-piece in his dissertation on the legal rights of foreigners in China, andprovided a major reference point for Staunton’s own views on the Qing statutes relating tohomicide.51 In a footnote to the section in the code on ‘Killing or wounding in Play, byError, or purely by Accident’, Staunton criticised the commonly-held argument that Chineselaw did not accommodate mens rea as being “totally without foundation”, and referred tothe sailor involved in the case as “having been acquitted agreeably to the provisions ofthe law contained in this section”. But more importantly, the opportunity to highlight theEast India Company’s and his own personal contribution to the matter was not lost. Hestressed that “had not the Chinese government almost been necessitated . . . by the firm,but temperate and judicious measures adopted on the occasion by the East India Company’srepresentatives . . . the forms of Chinese justice could not have been submitted to, withoutrisking unwarrantably the sacrifice of the life of a British subject”.52

Previous discussions of Staunton’s contribution to our understanding of the Neptune affairhave focussed almost exclusively on his ostensible criticism of the way the Qing officialsresolved the case. For example, the renowned legal scholar and international jurist, GeorgeKeeton, came to the conclusion that “to the legal mind, familiar with the scrupulousexactitude and truth required by Western tribunals, this procedure of the Peking Courtmust necessarily seem in the highest degree reprehensible”.53 What was the basis of hisconclusion? A paragraph selected from Staunton’s commentary on the case in the Ta TsingLeu Lee:

The tenor of this Edict, and the circumstances under which it is known to have been published,are calculated, it must be acknowledged to convey more unfavourable ideas of the administrationof the laws of the Chinese Empire, than almost any other public act of that government uponrecord. In this case, all the proceedings were founded on a story fabricated for the purpose; astory in which the Europeans did not concur, though asserted to have done so; which, in fact,the Chinese magistrates themselves, or the merchants under their influence, invented, which thewitnesses, knowing to be false, adopted; and which, lastly, the sovereign himself appears to haveacquiesced in without examination.54

There are serious problems with this selection, for if we read the whole section it is clearthat Staunton plainly had something very different in mind. He was primarily concerned

51For Staunton’s references to the affair, see TTLL, pp. 36–37, 313–315, 515–524.52Ibid., p. 315.53Keeton, The Development of Extraterritoriality in China, Vol. 1, p. 52.54TTLL, p. 516.

Jurisdictional Politics in Canton and the Qing Penal Code (1810) 159

Fig. 1. View of the front of the Hongs at Canton, with the British Hong in the background, after 1807.Courtesy of the Winterthur Museum & Country Estate, Winterthur, DE (Catalogue No. 65.1601).

with defending the Chinese verdict. Remarking that it was an unprecedented case, he arguedthat it “cannot justly be made the ground-work of any inference”. He also explained thatthe flagrant corruption was mitigated on the grounds of its affair’s notoriety, and because itinvolved national pride and an inflamed xenophobic public. Most importantly, he portrayedthe outcome as an olive branch extended by the Qing, and as a judicious solution to anintractable dispute: “it neither produced, nor was intended to produce, the slightest deviationfrom substantial justice in respect to the person accused”. He concluded by declaring thatbecause the concerted verdict was so plausible (!) the Emperor’s acquiescence “certainlycannot be fairly considered as any impeachment of the judgement and impartiality of hisgovernment”.55

Although Staunton’s defence of the findings might seem a little far-fetched, hiscommentary was really aimed at promoting a positive image of legal order in Canton.In this he was not alone as we have proof that there was a concerted publicity exercisearound the trial of the Neptune affair in 1807. The visual evidence we have of the trial fullyexemplifies this [see Figures 1 and 2]. These oil paintings are depictions of scenes from the dayof the trial of the sailors of the Neptune: the first shows the officials arriving at the Factory forthe trial; the second is of the Court of Inquiry held in the hall of the Company’s Factory. Bothwere thought to have been painted by Lamqua, one of the foremost Chinese artists paintingfor the western export market.56 There are four known versions of this set of oil colours,and they appear very likely to have been commissioned as a pair by the Company – Staunton

55Ibid., pp. 516–517.56Carl L. Crossman, The Decorative Arts of the China Trade: paintings, furnishings and exotic curiosities (Woodbridge,

1991), pp. 108–109.

160 S. P. Ong

Fig. 2. The Court of Inquiry (into the trial of the sailors of the Nepture), after 1807. (The version owned bythe Royal Asiatic Society of Great Britain).

is said to have owned several versions, and gifted one of the court trial to the Royal AsiaticSociety when he co-founded it in 1823.57

The trial was famous for setting a few precedents. It was the first Chinese trial at whichthe entire British East India Factory establishment were officially invited to take part. On theright of the magistrates we have the Captain of the Neptune, and the most senior supercargoes,as well as the relatively slim and youthful Staunton himself. Facing them directly across thehall are their Chinese counterparts, the ‘Cohong’ merchants who supervised for the Qingstate the entire British trade. What is most striking is the presence of British soldiers guardingthe crowd, keeping order on Chinese soil. In fact, the legal proceeding was the first of itskind ever to have been held, not in a Chinese court of trial, but in the great hall of theEnglish East India Company’s factory.58 Here, a great ‘power summit’ is memorialised. Themeticulous position of the main actors and the orderly, sombre mood of the crowd all projecta marmoreal composure akin to that in a historical painting. The image can be also read asa vision of an idealised legal order in which the British are admitted as equals, and wherejustice is achieved based on mutual solidarity and accommodation.

This juridical expression comes across more palpably when we juxtapose it against a latervisual record of another trial, the Navigateur affair in 1829 [Figure 3]. While the artist’s exactidentity is again unknown, the style also identifies it as a product for the western export

57Tuck, supra at note 4, p. 96.58Morse, Chronicles, Vol. III, p. 52.

Jurisdictional Politics in Canton and the Qing Penal Code (1810) 161

Fig. 3. The Trial of Pirates in the Consoo House, Canton, 1827. (Current location unknown).

market.59 It depicts the trial of a crew of Chinese pirates who had robbed and murdered allon board a French ship off the coast of Macao, the only survivor being a young Portuguesesailor. The case provoked considerable interest in the expatriate community for two reasons.First, most homicide cases involving Europeans in Canton were homicides of Chinese byEuropeans; in this case the Europeans were in the unusual position of requiring, rather thanresisting, Qing judicial procedure. Second, the circumstances surrounding the survivor’sescape was unusual and gave the trial considerable dramatic interest: one of the pirates hadfreed him once he became privy to his crew’s plan to get rid of the human evidence – thepainting narrates the exact moment in the trial when the sailor was reunited with his saviour,the two men embracing in front of the magistrate’s table. The general atmosphere of thecourt is carnivalesque; the entire foreign merchant community (Europeans, Americans andParsees) has turned out for the event. The painter portrays a motley crew of foreigners andlocals from all walks of life mingling in prurient fascination: most of them crowd breathlesslyaround the magistrate’s table; some gather around the caged prisoners as they were being ledout to the magistrate’s table; others saunter around or blend into the fringes of the scene. Thefluidity of the composition here finds absolutely no parallels in the earlier painting of theCourt of Inquiry into the Neptune affair (Figure 2). But the most deeply discordant aspect ofthe image is the portrayal of a group of black-suited gentlemen in top hats standing behind

59Crossman, The Decorative Arts, pp. 442–443.

162 S. P. Ong

the magistrate’s table, towering like Colossus above the entire scene, and fronting what ismost likely a statue of a Chinese deity. The artist’s perspective of this group of observersrepresents a complete departure from his perspective on the rest of the scene: it asserts anexclusive relationship between the men and the rest of the court. Detailed coverage in theonly English-language newspaper in China in this period, the Canton Register, allows usto identify them and explain their unusual portrayal. These were ‘the great and the good’of the British expatriate community. Robert Morrison (the senior Protestant missionaryand chief interpreter for the Company) was among them, and the painting appears to havebeen commissioned to commemorate his successful plea for clemency on behalf of thecompassionate pirate – who, according to the Register, the Qing judge wanted to executeon account of his earlier confession under torture. The Register was keen to point out that

the Chinese generally, not only excused the apparent interference . . . but highly commendedthe generous spirit which dictated it; and lauded the foreigner who stood forth to plead in behalfof [sic] accused Chinese . . . As that individual has several times to plead for mercy in behalf offoreigners, in cases of excusable homicide . . . when he did a similar thing for a native Chinese,supposed erroneously, to have been the murderer of foreigners; the natives were convinced of hisimpartiality, and several of them, who heard of the occurrence, even at a hundred miles distance,complimented him on the occasion.60

It is significant that Morrison and his compatriots were portrayed literally with ‘divine’power behind them. The Register’s extended reflections on the deficiencies of Chinese lawmake it clear that the British figures were to be understood as no less than tutelary spiritsof justice – declaring in effect the illegitimacy of Chinese law, and the necessity of beingexempted from its terrible conditions. It embodies an extraordinary contrast in the expressionof western attitudes towards the Qing legal system: where before we had a collaborative,consensus-forming endeavour, here we have an aloof, smug, almost invincible detachment.It is clear that in the time between the Neptune affair in 1810 and the trial of the piratesin 1829 the position of westerners within the community in Canton had undergone sometransformation. Eclipsed in our view of this transformation are the conditions that sustainedthe tantalising reflections of the earlier moment on a hybrid legal order, and its widerramifications.

That Strange and Anomalous Arrangement

For a committed elucidation of the Company’s legal situation in China, we have to look ina collected volume of political essays which Staunton published in 1822, titled MiscellaneousNotices, relating to China, and our commercial intercourse with that country. In it, he wrote ‘A letterto a member of the Select Committee of the East India Company’s Establishment at Canton,upon the duties of his appointment’; it needs to be quoted at length:

I shall conclude this letter with a few remarks on the extent to which it may be considered thatobedience is due by you to the mandates of the Chinese government. As a general principle,it cannot be questioned, but that we are bound in all ordinary cases, to submit to the laws and

60The Canton Register, Vol. 2, No. 4 (Thursday 19 February 1829).

Jurisdictional Politics in Canton and the Qing Penal Code (1810) 163

institutions which we find established in the country in which we reside; and that, simply bythe circumstance of our coming to China to trade, we do implicitly engage to submit to allthe terms and conditions which the Chinese government has, in its wisdom, deemed proper toannex to our admission. Accordingly, if, in point of fact, the laws and institutions concerningforeign traders, and the terms and conditions imposed upon foreign trade in China, had beenunequivocally declared, and irreversibly determined by the government of China, however wemight have to regret and to deprecate the consequences of such a system, it would at least have hadthe effect of determining a great portion of those doubtful and embarrassing questions, which atpresent we are so continually occupied in discussing. But the contrary is the fact; the regulationsunder which we are supposed to act in China, are, in many respects, not only equivocal interms, but doubtful and contradictory in fact; and the gradual improvement which has long beentaking place in the practical application of these regulations, renders it pretty obvious that theyare very far from being either unchangeable or irreversible. The written laws and edicts whichwere originally promulgated upon the first opening of the port of Canton to European traders,were so harsh, oppressive, and degrading, that they could not, even at the very outset, be strictlyenforced; and they have since insensibly either become entirely obsolete, or in practice have beenso modified or evaded, as at length to produce that strange and anomalous arrangement which atpresent subsists; and which, however vague, uncertain, and precarious, cannot be condemned asaltogether unfavourable to us, since it permits us to carry on, from year to year, with considerableease and facility, one of the most important and profitable branches of British commerce.61

Staunton makes three principle points here. The first is his invocation of the grand rule ininternational intercourse which upheld the autonomy of nations to regulate trade on theirown terms. The second is his corollary acknowledgement that foreigners were bound to thelaws and customs of their host nation; in other words, there was no question of the EastIndia Company assuming legal authority in Canton, no question of extraterritorial rightsfor Britons. The third, and most notable, is his declaration that these foundational rules ofinternational conduct had all but collapsed in Canton. And finally, albeit in a fragmented andweakly articulated way, emerges the understanding that this collapse was brought about bythe very draconian and impractical nature of the laws themselves, as well as by the pragmaticcalculus of commerce and the prolonged co-existence of peoples. It is hard to miss Staunton’sambivalence about the plural and hybrid nature of the Canton legal system. At one pointhe calls it a “strange and anomalous arrangement”, with regulations that were “not onlyequivocal in terms, but doubtful and contradictory in fact”. At another he describes it as“the gradual improvement which has long been taking place in the practical application ofthese regulations”. The solution that he envisages to the state of legal confusion is equallymuddled. On one hand he yearns to see greater political will from the Qing which wouldenable them to articulate some much-needed clarity into the status quo – he claims that“if, in point of fact, the laws and institutions concerning foreign traders, and the termsand conditions imposed upon foreign trade in China, had been unequivocally declared, andirreversibly determined by the government of China, however we might have to regret and to deprecatethe consequences of such a system, it would at least have had the effect of determining a greatportion of those doubtful and embarrassing questions, which at present we are so continually

61Miscelleneous Notices, relating to China, and our commercial intercourse with that country; including a few translationsfrom the Chinese Language, second part (London, 1822; enlarged second edition), p. 306.

164 S. P. Ong

occupied in discussing”. And yet, he is also happy to admit that the vague, uncertain andprecarious application of laws “cannot be condemned as altogether unfavourable to us, sinceit in fact permits us to carry on, from year to year, with considerable ease and facility, one ofthe most important and profitable branches of British commerce”. If legal order was reallythe Qing’s sole prerogative, as universally recognised by international norms, what of Britishinterests? More pertinently, what exactly was the nature of the relationship between Britishinterests in Canton and the condition of a plural legal order? Staunton’s analysis is remarkablefor its profoundly ambiguous attitude towards Qing authority and British agency. Such palpablecontradictions should caution us against making the claim about Canton being a zone ofconfrontation between two incompatible governing cultures or systems of law.

Recent works by legal historians, such as Edward Keene and Lauren Benton, haveemphasised the importance of legal pluralism and divisible sovereignty to the emergence ofcolonial orders, where “colonial conditions . . . intensified the fluidity of the legal order . . .(and) both colonising factions and colonised groups . . . sought advantage in the fracturedqualities of rule”.62 Indeed, the erosion of China’s jurisdictional authority was inherent inthe nature of the Company as a colonial agent and quasi-sovereign entity. Notwithstandingthe formal commitment to legal obedience and co-operation, crimes committed by H.M.S.or Company sailors in the anonymity of numbers (shielded by the code of silence within themarine corps and the lax adherence to procedure, such as requiring suspects to testify underoath)63 , or by drug smugglers with consular protection, or those done in the shadowy realmof ‘the high seas’, were but some of the myriad fine technicalities that required the voiding ofthat commitment, and the immediate and indignant resurrection of the East India Companyas an offended sovereign agent fighting to protect the natural rights of every free Briton.While the Company assimilated on a superficial level to the existing structures of Qing rule,it exploited whenever possible the weaknesses and loopholes within that structure – where,for instance, the limits of law and authority were not properly articulated, or could not berealised.

Of course, none of this was visible in Staunton’s optic. With the Company’s monopolyup for renewal in 1812, and a new rising merchant class inciting the public clamour for freetrade, an orchestrated defence of the status quo was needed. It was in this discursive arenathat the valorisation of Chinese justice had such a pivotal role to play. The contradictionsof British illegality and its colonial specificities were sealed off by assimilating the discussionof Chinese law into a framework of civilisational and interstate discourse. This discourseacquired varying tonalities, but perhaps the most powerful belonged in the repertoire ofCompany ideologues such as Staunton. In their hands it accomplished two strategic aims.

The first was to characterise the jurisdictional arrangement in Canton as a weak legalpluralism. On this account, the Qing authorities had ostensibly acknowledged that a differentset of laws applied to the British and westerners, as a pragmatic concession to the commercialand political clout of the East India Company. These concessions were therefore a valuable

62Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge, 2002), p. 259;Edward Keene, Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics (Cambridge, 2002).

63See the Company directors’ critique of the supercargoes for their diffidence in attempting to find the culpritin the Neptune affair, in British Library, Oriental and India Office Collections, Court’s letters to the Select Committeeof Supercargoes at Canton in China (1807–8), R/10/39, ff. 40–41.

Jurisdictional Politics in Canton and the Qing Penal Code (1810) 165

demonstration of the advantages of the Company’s monopoly because it yielded a premiumof a consequential kind during legal arbitrations – it demonstrated the unique mix of powerswhich a diplomatic consul or mere merchant could not possess. In the light of the unstablelegal situation in Canton, the preservation of the Company’s status quo would be imperative,because its countervailing presence was the only thing that saved British expatriates from thewanton depredations of Chinese law.

The second move was to recast the emergence of the plural legal order as a natural andinevitable outcome. In this analysis, an Olympian silence surrounds British agency and thecausality of legal pluralism: nothing on the expansion of the private trade, which more oftenthan not took on a clandestine, buccaneering hue, bending the laws to the extreme; andcertainly nothing on the Company’s collusion with those entrepreneurial drug smugglersto secure a more favourable balance of trade. In pro-Company literature, as in Staunton’scommentaries and his advice, we have more or less a total disavowal or elision of thedetermining influence of British mercantile strategy in eroding and destabilising the legalorder in Canton. Rather, the inchoate legal landscape was framed as the unilateral outcomeof Chinese accommodation; it was a tacit admission by the Chinese about the impracticalseverity of their laws.

In this light, Staunton’s Janus-faced stance towards Chinese law had implications beyondcultural sympathies or catholic pragmatism. They can be seen as discursive positioningsentailed by his larger agenda of integrating Chinese law into the British imperial episteme.Here, the crucial rhetorical manoeuvre was to put a positive spin on the nebulous legal statusof foreigners in Canton: here was not a power vacuum exploited by British commerce, whereeverything was in flux and out of control; rather, it was a flexible and effective legal pluralism,a virtual structure of power-sharing, insured by the proven bargaining power of the East IndiaCompany. Most important, the familiar and resonant image of laws being “terrifying in formbut mild in practice” ensured that China remained sympathetic to its Georgian audience –not too hardline, not fundamentally different, but somewhere reassuringly within thepenumbra of the civilisational pale.

S.P. Ong

University of Cambridge